MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution for Convention reasons -whether the applicant belonged to a particular social group - whether there was jurisdictional error in the Tribunal's decision.

WAIU v Minister for Immigration [2003] FMCA 122 (11 April 2003)

MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution for Convention reasons -whether the applicant belonged to a particular social group - whether there was jurisdictional error in the Tribunal's decision.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH

WZ 258 of 2002

WAIU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a national of Afghanistan who arrived in Australia on 29 August 2001. He applied for a protection (Class XA) visa on

29 September 2001. On 18 June 2002 a delegate of the respondent made a decision refusing to grant a protection visa to the applicant.

2. On 20 June 2002 an application was made to the Refugee Review Tribunal for review of the delegate's decision. On 11 September 2002 after hearing from the applicant the Tribunal affirmed the decision of the delegate.

3. The applicant was represented at the hearing by Mr S.A. Walker of counsel who filed a minute of proposed amended grounds of review in court on the day of the hearing. The first of these grounds, relating to the jurisdictional basis for the application, was withdrawn. The two grounds which remained related to the alleged failure of the Tribunal to consider whether the applicant was a member of a particular social group being a Tajik person from the Panjsheri area. The applicant also claimed that the Tribunal did not consider whether or not there was a risk that he might suffer persecution by reason of his race namely by reason of him being an ethnic Tajik.

4. The applicant, in common with many Afghanis who arrived at about the same time as himself, based his claim originally on his persecution by the Taliban. However, his case was not considered by the delegate of the Tribunal until after the Taliban were removed from power. The applicant advised that he would still be in danger because he had avoided military service with the Northern Alliance and because Tajiks from the Panjsheri region were subject to hostility from Pashtuns who are now in power. At [CB 184] the Tribunal noted that the applicant claimed that people including non-Panjsheri Tajiks would still wish to take revenge for acts which had taken place when Panjsheris were previously in power.

5. Although the applicant claimed to be a Panjsheri Tajik, this could be described as his historical description. The Tribunal accepted that the applicant's family came from the Panjsher Valley and that the applicant returned to that area prior to his leaving Afghanistan but the fact was that the family had spent most of its time in Kabul.

6. It is not really necessary for me to rehearse the other claims made by the applicant in his interviews with the Tribunal because the case was fought in a very narrow compass relating to the Tribunal's consideration of his ethnicity, but it should be noted that the applicant has suffered severe losses in his family including the loss of his mother who was blown up on a bus whilst travelling somewhere between Parwan and Kabul.

7. Before me the applicant claimed that he was the member of a particular social group of Panjsheri Tajiks which is one defined by two factors; ethnicity (Tajiks), and area of origin (the Panjsher Valley). He argued that for a person to be a member of this group he or she must satisfy both criteria. The applicant also argued that the claim of risk of persecution by reason of membership of this group was not adequately characterised as a claim made on the Convention ground of race. It was a claim made on another Convention ground, namely membership of a particular social group. The distinction that the applicant sought to draw was important because some of the evidence given related to the position of Panjsheris, for instance that the Pashtans hated the Panjsheris [CB 184] and some related to Tajiks.

8. The applicant also claimed that the Tribunal confined its consideration of his claims to ethnicity. At [CB 202] the Tribunal states:

"The Tribunal is not aware of any evidence of persecution of Panjsheri Tajiks, whether in Kabul or in the Panjsher Valley itself, for reasons of their ethnicity, since the defeat of the Taliban. Therefore, it is not satisfied that he is at risk of persecution for reasons of race."

9. The applicant argues that this finding excludes the possibility of a finding that the applicant may be at risk for a Convention reason because of his membership of the social group of Panjsheri Tajiks because that group is at risk from other Tajiks that did not come from the Panjsheri region.

10. The second ground the applicant puts forward is that the Tribunal did not consider his case on the basis that he was an ethnic Tajik. He submits that the only reference by the Tribunal to the question of risk of persecution on the basis of the applicant being a Tajik were:

(1) Its recital in its reasons of the fact that it has said to the applicant during the hearing that it had found no evidence to suggest that Tajiks were now at risk of persecution because of their race [CB 191]; and

(2) The short paragraph in the middle of [CB 202] which is combined to the consideration to the narrower group of Panjsheri Tajiks.

11. I have to confess to some confusion about these two arguments. I am not at all sure they are not inconsistent but I will assume for the purposes of these reasons that the applicant is arguing that he belongs to the race of Tajiks and the social group of Panjsheri Tajiks.

12. I am satisfied that if the Tribunal did not address the applicant's claimed fear of persecution for the Convention reason of his ethnicity or did not consider whether the applicant was a member of a particular social group it will have committed a jurisdictional error (Lek v Minister for Immigration, Local Government & Ethnic Affairs (No2) (1993) 45 FCR 418, Abdi v Minister for Immigration [1998] FCA 1335, Minister for Immigration v B (2000) 105 FCR 304, Weheliye v Minister for Immigration [2001] FCA 1222 and SBBK v Minister for Immigration [2002] FCA 565), but I am not satisfied that this is what has occurred here. The applicant made a number of general allegations concerning his fear of persecution arising out of him being a Panjsheri Tajik. The delegate tested these against the country information which indicated that Panjsheri Tajiks were at an advantage at least as at the date of the article in the New York Times of the 17th December 2001 see [CB 185 at 5] where this matter was also noted by the Tribunal. The respondent had answered this query [CB 186 at 5] and there is no reason to believe that having put this information in its reasons for decision the Tribunal did not consider it. The applicant also put forward the general statement that some non-Panjsheri Tajiks hate Panjsheri Tajiks. However, he did not offer any other evidence about this. I believe that it would be fair to say that these allegations took very much second place to the applicant's major claim that he would be in danger because he was, in effect, a deserter from the Massoud forces. This is a claim which the Tribunal rejected and upon which decision no review is sought. It is therefore not surprising that the Tribunal only dealt with these more general and really unsubstantiated allegations in the short paragraph found at [CB 202] and previously quoted.

13. I accept that the paragraph does not refer to the applicant as a member of a social group of Panjsheri Tajiks nor does it refer to his Tajik ethnicity alone. But to my mind it indicates that the Tribunal has examined whatever evidence there is and has come to a conclusion that:

(a) This particular applicant is not in danger because he is a Pasjsheri Tajik; and

(b) It did not accept his statement found at [CB 183] that he would face continuing persecution because he was a Tajik.

14. The issue on whether the integers of a claim had been considered by the Tribunal was discussed in Pojani v Minister for Immigration [2002] FCA 1283. At [21] Madgwick J quoted from a passage in Paul v Minister for Immigration (2001) 113 FCR 396 where Allsop J said:

"Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction (as to which issue see generally and not exhaustively, Minister for Immigration & Multicultural Affairs v X [2001] FCA 858; Minister for Immigration & Multicultural Affairs v Tedella [2001] FCA 832; Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736; Chhour v Minister for Immigration & Multicultural Affairs [2001] FCA 911; Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 and Thirukkumar v Minister for Immigration & Multicultural Affairs [2001] FCA 864) they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for claim for asylum are addressed. It may be that if the element or integers of the claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim." (emphasis added)

And then at [22], in dealing with the particular case at before him Madgwick J states:

"The question of whether the integers of a claim have been addressed in the present case is a difficult one and a matter for judgment, based on the particular circumstances. What is involved is a consideration, in light of the evidence, of whether a failure to refer to some evidence as to a particular matter, or a failure to deal at all with some factual matter, amounts to failure to deal with one of the necessary ingredients of the claim. The task for the Court is to determine on which side of the line the matter falls in the particular case."

15. I am satisfied that in this matter before me the Tribunal did address the integers of the claim. Most of the cases in which a successful argument is made that the Tribunal has failed to consider the applicant's claim as a member of a particular social group are cases where the Tribunal has accepted (or it is clear from the evidence) that the applicant is in some danger for some reason. In this case the Tribunal does not accept the applicant is in any danger. That finding is made on the basis of consideration of the country information as against the applicant's submissions which is what the Tribunal is required to do. If you do not generally fear persecution at all you cannot fear it for a Convention related reason however so that reason may be classified. I am satisfied that the Tribunal appropriately analysed the fear which were expressed by the applicant and, having considered his statements and those of his witnesses and the likelihood of the fears being well founded on the basis of country information available to it, the Tribunal rejected the applicant's fear. I believe that must dispose of the case.

16. I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21 Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM